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13. THE ABOLITION OF JUDICIAL CORPORAL PUNISHMENT
In S v Williams and Others  3 SA 632 [PDF] the Constitutional Court of South Africa heard a reference from the Cape of Good Hope Division of the Supreme Court following sentences of whipping imposed on six juvenile males in 1994.
Williams had not been caned: the magistrate himself had asked that the infliction be deferred pending review, because he had doubts about the consistency of the sentence with the new Constitution.
Williams' five co-applicants had already received their whippings, but all their cases came up on review in respect of suspended prison sentences passed on three of them.
In its unanimous judgment written by Langa J, the court considered the differences between adult and juvenile whipping:
[...] 44. Differences between adult and juvenile whipping have, in my view, little or no relevance to the enquiry. They are in any event differences in degree rather than kind. [...] I am of the view that the differences are far outweighed by the similarities. There is a small difference in the dimensions of the instrument used, the adult is stripped naked and trussed, the strokes being delivered on bare flesh, while the juvenile’s strokes are inflicted on normal attire, without him being tied; there is no limit to the number of times a juvenile may be sentenced to receive strokes, while the adult may only be so sentenced twice, and never within a period of three years of the previous sentence of strokes. Both occur in a state institution; the maximum number of strokes that may be imposed is seven in respect of both. Both involve a physical beating with a cane wielded by a State employee, a stranger to the person being punished.
45. [...] Although the juvenile is not trussed, he is as helpless. He has to submit to the beating, his terror and sensitivity to pain notwithstanding. Nor is there any solace to be derived from the fact that there is a prior examination by the district surgeon. The fact that the adult is stripped naked merely accentuates the degradation and humiliation. The whipping of both is, in itself, a severe affront to their dignity as human beings.
61. The grounds on which the State sought to justify juvenile whipping were, firstly, that it made good practical sense to have juvenile whipping as a sentencing option. The practice had advantages for both the offender and the State, particularly in view of a shortage of resources and the infrastructure required for the implementation of other sentencing options for juveniles. Secondly, it was suggested that juvenile whipping was a deterrent.
82. It may be relevant to observe that three of the applicants in this matter had previous convictions for which they had received strokes; one of them, Witbooi, had in fact received five strokes a mere five months before the present sentence. Some of the co-accused had a variety of previous convictions for which they had received sentences which included strokes. One of them, namely Thomas, had already received a total of sixteen strokes. The previous punishment had obviously failed to act as a sufficient deterrent in these cases.
89. [...] Corporal punishment involves the intentional infliction of physical pain on a human being by another human being at the instigation of the State. This is the key feature distinguishing it from other punishments. The severity of the pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The Court merely directs the number of strokes to be imposed. The objective must be to penetrate the levels of tolerance to pain; the result must be a cringing fear, a terror of expectation before the whipping and acute distress which often draws involuntary screams during the infliction. There is no dignity in the act itself; the recipient might struggle against himself to maintain a semblance of dignified suffering or even unconcern; there is no dignity even in the person delivering the punishment. It is a practice which debases everyone involved in it.
90. [...] The deliberate infliction of pain with a cane on a tender part of the body, as well as the institutionalised nature of the procedure, involves an element of cruelty in the system that sanctions it. The activity is planned beforehand, it is deliberate [...] the act is impersonal, executed by a stranger, in alien surroundings. The juvenile is, indeed, treated as an object and not as a human being. [...]
The Court referred to several leading cases from neighbouring countries dealing with the constitutional validity of corporal punishment including Ex Parte Attorney-General, Namibia: In re Corporal Punishment By Organs of State  (3) SA 76 (NmSC) and, in Zimbabwe, S v Ncube; S v Tshuma and S v Ndhlovu  (2) SA 702 (ZSC).
It observed that in the latter case the Zimbabwe Supreme Court, dealing with the issue of corporal punishment for adults, had held that the practice was inhuman and degrading in violation of section 15(1) of the Declaration of Rights of the Zimbabwe Constitution, which prohibited "torture or inhuman or degrading punishment." The Court noted that the same conclusion was reached with respect to juvenile whipping by the Zimbabwe High Court in S v F  (1) SA 460 (ZHC). Juvenile whipping had been held to constitute inhuman and degrading punishment by the Zimbabwe Supreme Court in S v Juvenile  (4) SA 151 (ZSC). In that case Gubbay JA had characterised juvenile whipping as:
"[...] inherently brutal and cruel; for its infliction is attended by acute physical pain. After all, that is precisely what it is designed to achieve [...] In short, whipping, which invades the integrity of the human body, is an antiquated and inhuman punishment which blocks the way to understanding the pathology of crime."
The Constitutional Court went on to find unanimously that the provisions of s.294 of the Act (the juvenile whipping provisions) violated sections 10 and 11(2) of the Constitution and should be struck down.
The case thus brought about the demise of corporal punishment of juveniles in South Africa.
The Correctional Services Amendment Act 79 of 1996 repealed the provisions in the Prisons Act providing for corporal punishment in prisons.
The following year, judicial corporal punishment in South Africa was finally abolished in all respects with the passing of the Abolition of Corporal Punishment Act 1997 [PDF] . That Act, which received the President’s formal assent on 5 September 1997 (Government Gazette 18256), provided in Section 1 that any law which authorised corporal punishment by a court of law, including a court of traditional leaders, was repealed to the extent that it authorised such punishment, and specific legislative provisions providing for corporal punishment were abolished in the Schedule.
However, corporal punishment has continued in an illegal form during the post-apartheid era (see Section 11).
Abolition has not been universally popular. Many ordinary people have clamoured in the columns of local newspapers and elsewhere to have JCP restored. Some political parties, notably Zulu Chief Buthelezi's Inkatha Freedom Party, have formally adopted a policy of restoring JCP as part of their manifesto. In fact one IFP spokesman has accused the ruling ANC of "running roughshod over Zulu tradition" with the law banning corporal punishment. (1)
Similar calls have come from farmers in particular, for instance the KwaZulu-Natal Agricultural Union. (2)
Given the outspoken and unequivocal ruling of the Constitutional Court, however, it seems extremely unlikely that these people's wishes will ever be granted.
(1) Ben Harding, "Zulus gather for final S. African election push", Reuters, 12 April 2004.
(2) "S. African Farmers Call for State of Emergency", Xinhua News Agency, 10 December 1997.
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